Need legal opinion-Labor law violation and termination.

Dear Ajeeth,

What is the so called Software giants company policy, when do you have to intimate while not attending to work and if it is a medical leave.. what is the time period within which you need to submit the proof if these are within the policy... then A is not wrong and even if he is on the wrong side... no one can terminate without intimating the employee himself.

Dear Ajeet.

From the facts as you narrated.  The termination is apparently illegal. Firstly because it is oral termination as no termination order exists, secondly even presuming that it is on the ground of alleged absconding from work, under the service law absconding from work amounts to misconduct and  termination on this ground is punitive in nature. Thus it was incumbent upon the employer to initiate disciplinary proceeding after issuing charge sheet and asking his explanation there after holding of domestic enquiry etc. But I presume it was not done. Even for the sake of argument it is presume that due procedure was adopted by employer and employee was found guilty, the termination for such short absence is very harsh punishment. But problem arises from where the employee will able to get remedy ? In case, he fall within the ambit of the definition of “Workman”. He has remedy under the Industrial disputes Act otherwise he has to file Civil suit, in which reinstatement is not possible and the employee can seek only damages and compensation for which he has to incur huge amount in court fee and it is also very time taking process.

A's job classifies him to be a Workman under Industrial Disputes Act 1947.

The act of employer did not involve any disciplinary proceedings.

A decided to protest against this ill-practice. On April 21, A reported this incident to other higher authorities within the company. After several round of telephonic conversations and; and management’s (from head office) intervention; finally on May 7, 2008, the Sr. HR manager (fuming by then and who sits in local office and A’s work location) phoned A and informed him about employer’s decision of A’s rejoining (he verbally claimed that the decision of rejoining was based on A’s past performance records, please note). He asked A to visit office the next day, May 8. All the joining formalities were once again arranged by the employer.

A fresh appointment letter was issued to A with no mention of A’s past employment status with the company. No service certificate was issued for previous tenure and no back wages were discussed with A.

A accepts it amicably and rejoins the establishment on May 12, 2008 without continuity in service.

Please conclude the carelessness of employer throughout this episode and its legal significance!
 

As A acepted his re-joining/fresh joining without any continuity of service then he condoned all illegal actions of his employer thus he has now no opportunity left to agitate against the past behavious or employer.

Many thanks.

The main part of the story lies in 2nd term of employment which I will post subsequently.

Full and final statement was never released. And as he was given appointment letter afresh and on May 12 he re-joined without continuity in service.

My point here is that how unlawful and not ethical or illegal this was to discharge such a practice on company’s part. The company also had not furnished any formal documents pertaining to last employment status of A. Employer did not issued any termination letter and no formal documents related to separation were discharged and A did not receive any salary as per agreement's termination clause.

Which procedure of separation was followed by the company and whether such a procedure solely depends upon company’s internal policies and Law of Land has nothing to do with this.

Ajeet

I agree with Mr. Makkad that after joining on new appointment, A has condoned the action of his employer and he is estopped from challenging his legality of his termination but since his dues of his past service were not paid, he has a right to claim the same treating his services came to an end on the date of his termination. His is entitled for gratuity, PF, Bonus earned leave wages etc, if  due are if he eligible under the resp[ective Act.

Part II 

Now me tell you the the Future of A after him re-joining this big brand on May 12. He became a big question mark!

Every one working in company’s local office started treating him like a sinner. As A had fought for his job and got it back by the intervention of remote management so the Local management including Sr. HR Manager and VP-HR, all started abusing their authority by directing their managerial wisdom to conspire A’s exit from the concern. They explored every possible opportunity to harass him up to the extent that he may simply give it up or throw him out. A was subjected to meetings where he was taught about the company code of conduct, company policies on leaves, breaks from work etc., verbal warnings in public and was handed over a formal counseling letter once. This exercise was continued till almost 7 months. 

A had always dreamt of a very long term association with this conglomerate because of its brand name and he landed in a situation where he was almost made a subject of experimenting company policies and procedures and was facing constant harassment in some or other form from his supervisor.

Any comments ???

I could find the harrasments from the management side. If you continue to work there you will loose your respect. My sincere advise is to quit the job. Go for some other company.

You can initiate action on the company for compensation for illegaly terminating you.

Arungiri sir how can he initiate action against the company for compensation for illegaly termination  as he waved his right by regoining the company without continuity in service. is there any other way to sue the company .......?

many thanks, 

After working in above stated adverse conditions, for almost 7 months,  A finally decided to report this abuse and harassment to senior officials of the company including HR managers and VP.

Despite continuous harassment, A had maintained a good performance record. Throughout these 7 months, his performance on work was consistent and he had been among top 10 in his team of 30+, and a couple of the times, he was among top performers in his team.

During these 7 month period, although he was given some counseling sessions (upon management’s whim), management had no reason to issue him any show cause notices. 

The same day, when A reported the misconduct [Nov 2, 2008], management sent him on an indefinite leave and a Show Cause Notice asking explanations about his poor performance on work was sent to A's email address on Nov 7, 2008 [attached herewith]. 

Also, he was advised to resign the company.

The e-mail (attached above) was sent to different senior officials on [Nov 2, 2008], management sent him on an indefinite leave and a Show Cause Notice asking explanations about his poor performance on work was sent to A's email address on Nov 7, 2008 [attached herewith]. 

HR issued a Show Cause Notice to its employee, and please note that only when serious allegations were made by the employee against unlawful act of his employer.

Was this act of employer legal and ethical? Can this unlawful act or emplyer be challenged in a Court of Law?

Dear Ajeet,

the act of employer can be challenged in the court of law....

hope your friend has already filed a case... if not it would be tough to explain the inordinate delay to the court... and please give us the present situation to know if other senior learned experts would be of some help...

Even though he had joined the duty, the company had treated this as a fresh appointment only. The act of the company (termination) was not condoned and can not be condoned.

The company exploited the the employee by not reviving the earlier service and by giving him a fresh order.

So, there is a clear cut harrassment and illegality involved.

The employee is having a good case.